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Initiating Discovery in a Probate Proceeding

An “interested person…2 [m]ay obtain discovery, perpetuate testimony or conduct examinations in any manner authorized by the law or by the Nevada Rules of Civil Procedure relevant to such proceeding” upon filing a proceeding and service of the notice of hearing to other interested persons. NRS 155.170(1). Unless otherwise ordered by the court, an interested party need not engage in a 16.1 early case conference or file a case conference report prior to conducting discovery in a probate proceeding as required by NRCP 26. See NRS 155.170(2). That said, the probate commissioner or probate judge may impose 16.1 discovery deadlines if requested pursuant to EDCR 4.17. The practical effect of NRS 155.170 is that

DISCOVERY IN TRUST AND ESTATE LITIGATION

interested persons may begin conducting discovery in a probate proceeding weeks, if not months, earlier than parties in a civil proceeding.

Discovery Disputes In a Probate Proceeding

The remaining rules regarding discovery in a probate proceeding in the Eighth Judicial District depend in large part on whether the matter is being heard by the probate commissioner or if a party has requested that the matter be referred to the probate court judge. See EDCR 4.17.

Filing the Discovery Motion

Typically any petition can be brought in a probate proceeding upon a 10-day notice, pursuant to NRS 155.010(a); however, in the Eighth Judicial District, the timeframe in which to have discovery motions heard by the probate commissioner is governed by EDCR 2.20, as opposed to the 10-day notice requirement under NRS 155.010. The discovery motion must include an affidavit of moving counsel, identifying the efforts of counsel to confer and resolve the discovery dispute in good faith. See EDCR 4.18(a)(3). Similarly, in contested matters that have been referred to the probate court judge, “all discovery

The initial reaction by an attorney conducting discovery in trust and estate litigation is to assume that the Nevada Rules of Civil Procedure (NRCP) govern all aspects of discovery. It is true that discovery in a proceeding arising under Title 12 and chapters 162 through 167 of Title 13 of Nevada Revised Statutes (hereinafter referred to as a “probate proceeding”), is governed by the NRCP.

However, a number of statutes and local district court rules trump the NRCP regarding discovery. See NRS 155.180. This article identifies and highlights some of the differing statutes and rules, particularly those contained in the Eighth Judicial District Court Rules, and in some instances, the Second Judicial District Court Rules,1 applicable to probate proceedings.

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probate court judge, “all discovery disputes must first be heard by the discovery commissioner, and the parties shall resolve such disputes in accordance with Rule 2.34 unless otherwise ordered.” See EDCR 4.18(b).

Unless the discovery commissioner and/or probate commissioner shorten the time in which to hear the discovery motion (see EDCR 2.20(e) and EDCR 4.18(a)(2)), the party opposing a discovery motion has 10 days to file an opposition to the discovery motion, and the moving party “may file a reply memorandum of points and authorities not later than five days before the matter is set for hearing.” See EDCR 2.20(h). Consequently, litigants cannot file a discovery motion and expect it to be heard on 10-day notice, pursuant to NRS 155.010(a), unless it is heard on a shortened timeframe.

Issuance of Order or Report and Recommendation

Unlike matters heard by the discovery commissioner, which always result in the submission of a report and recommendation (EDCR 2.35(f)), in matters heard by the probate commissioner, parties “may stipulate to immediate entry of an

order on the probate commissioner’s recommendation.” See EDCR 4.05(d). That being said, the probate commissioner typically issues a report and recommendation.

Irrespective of whether the matter is heard by the discovery commissioner or probate commissioner, the parties are to submit the proposed report and recommendation no later than 10 judicial days after being directed to

do so by the probate commissioner, unless the deadline is extended. See EDCR 4.05(b) and EDCR 7.21. If the parties cannot reach an agreement on the language contained in the report and recommendation, and submit competing reports and recommendations, the probate commissioner “will wait 5 judicial days before entering the report to enable the submission of a competing report by counsel for another party” unless the probate commissioner believes it is appropriate to immediately enter the report. See EDCR 4.05(c). The discovery commissioner does not have a similar requirement.

Both the discovery and probate commissioner have the authority to stay any disputed discovery proceeding pending resolution by the probate court judge. See EDCR 2.35(e) and EDCR 4.18(a)(4).

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DISCOVERY IN TRUST AND ESTATE LITIGATION

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Objection to Report and Recommendation

The given timeframe in which to object to a report and recommendation issued by the probate commissioner is 10 days, whereas the time given to object to a report and recommendation issued by the discovery commissioner is only five days. Cf. EDCR 4.18(a)(5) with EDCR 2.34(f). See also SDCR 57.3(7).

Standard of Review

Regardless of whether the report and recommendation is issued by the discovery or probate commissioner, Rule 53 of the NRCP imposes a clearly erroneous standard of review for findings of fact contained in a special master’s report in a non-jury action. Specifically, NRCP 53(e)(2) provides that “[i]n an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.”

The Second Judicial District Court’s Rule 57.3(11) imposes a clearly erroneous standard in reviewing objections to reports and recommendations issued by the probate commissioner. Interestingly, although the 2014 Eighth Judicial District Court Rules Committee of the Trust and Estate Section requested that the “clearly erroneous” standard be included in the revisions to Part IV of the Eighth Judicial District Court Rules, the proposal was rejected. Consequently, even though the “clearly erroneous”

standard is not codified in Part IV of the Eighth Judicial District Court Rules, the current probate court judge applies such standard.

The brevity of this article does not permit a full discussion of the discovery procedure in probate proceedings. Consequently, it is incumbent upon any lawyer making an appearance in probate court to review and ensure compliance with the NRCP and applicable judicial district court rules.

1. The author was unable to locate any specific rules regarding the topic of this article in the judicial district court rules for the following judicial districts: First, Third, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth.

2. An interested person, as defined by NRS 132.185(1), “means a person whose right or interest under an estate or trust may be materially affected by a decision of a fiduciary or a decision of the court. The fiduciary or court shall determine who is an interested person according to the particular purposes of, and matter involved in, a proceeding.”

JEFFREY P. LUSZECK is a partner at the Las Vegas law firm of Solomon, Dwiggins & Freer Ltd. His practice areas are primarily trust and estate litigation and small business litigation.